NOT PRECDENTIAL - Ballard Spahr/media/Files/Alerts/2013-12-18-Calen… · 18/12/2013 · Whether Calender’s claim is characterized as one for professional negligence or malpractice,

NOT PRECDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 12-4132

____________

JAMES S. CALENDER;

DIANE CALENDER, H/W,

Appellants

v.

NVR INC, trading as Ryan Homes;

JOHN DOES #1-10, (fictitious names);

ABC COMPANIES #1-10 (fictitious names)

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 1-10-cv-04277)

District Judge: Honorable Noel L. Hillman

Submitted under Third Circuit LAR 34.1(a)

on November 7, 2013

Before: GREENAWAY, Jr., VANASKIE and ROTH, Circuit Judges

(Opinion filed: December 13, 2013)

O P I N I O N

ROTH, Circuit Judge:

James S. Calender and Diane Calender appeal the District Court’s September 30,

2011, order granting defendant NVR, Inc.’s, Motion to Dismiss and the court’s

2

September 26, 2012, order granting summary judgment in favor of NVR. For the

following reasons, we will affirm the District Court’s orders.

I. Background

Calender1 purchased a newly constructed home from NVR on March 28, 2008.

NVR designed, manufactured, built, and sold the home. On October 21, 2008, Calender

went up into the home’s attic to change the air filter on an air conditioning unit. While

exiting the attic through the access panel/opening, Calender fell and was injured.

Calender filed suit on June 30, 2010, in the Superior Court of New Jersey, Law

Division, Camden County, alleging that NVR (1) negligently designed, manufactured,

constructed, and/or sold the home; (2) is subject to product liability because the attic

access panel/opening was unreasonably dangerous and defective; (3) breached its

contract to provide a safe, suitable home; and (4) breached its express and implied

warranties. The complaint also included a claim for loss of consortium.

NVR removed the suit to the U.S. District Court for the District of New Jersey.2

The District Court dismissed the design defect claim for failure to comply with the New

Jersey Affidavit of Merit Statute, N.J. Stat. Ann. § 2A:53A-26 et seq. A year later, the

District Court granted summary judgment in favor of NVR on the remaining claims.

1 Although both James and Diane Calender were named plaintiffs in this suit, we refer to

only James Calender, except where noted, for convenience and because the facts of the

case pertain to him.

2 The District Court had jurisdiction under 28 U.S.C. § 1332 because the Calenders are

citizens of New Jersey and NVR is incorporated and has its principal place of business in

Virginia and the amount in controversy exceeds the jurisdictional amount. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

3

II. Analysis

A. Motion to Dismiss the Design Defect Claim

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v Twombly, 550 U.S. 544, 570

(2007)). We exercise plenary review over the District Court’s granting of a motion to

dismiss. Institutional Invs. Grp. v. Avaya, Inc, 564 F.3d 242, 251 (3d Cir. 2009).

The Affidavit of Merit Statute requires a plaintiff in a personal injury action,

alleging negligence or malpractice by a licensed person, to provide an affidavit from a

different licensed person that states that there is a reasonable likelihood that the alleged

conduct fell outside acceptable professional or occupational standards. N.J. Stat. Ann.

§ 2A:53A-27. Failure to provide the affidavit is deemed a failure to state a cause of

action, id. § 2A:53A-29, and a dismissal under the statute is with prejudice. Cornblatt v.

Barow, 708 A.2d 401, 413 (N.J. 1998). Architects are included in the statute’s list of

“licensed persons.” Id. § 2A:53A-26.

In determining whether an affidavit of merit is required, courts must consider (1)

whether the action is for damages for personal injuries, (2) whether the action is for

malpractice or negligence, and (3) whether the care, skill, or knowledge exercised or

exhibited that is the subject of the complaint fell outside acceptable professional or

occupational standards. Couri v. Gardner, 801 A.2d 1134, 1137 (N.J. 2002) (internal

citations and quotation marks omitted). Here, the first two elements are met because

Calender’s action is for damages for personal injuries as a result of malpractice or

4

negligence. The third element is also met because the action alleges negligence on the

part of NVR’s architect in designing the attic access panel/opening. As the District Court

found, the claim is essentially one for professional malpractice or negligence in the field

of architecture. Pleading or demonstrating this claim would require expert testimony

from an architect, engineer, or comparable licensed person. Whether Calender’s claim is

characterized as one for professional negligence or malpractice, or one for strict product

liability, we agree with the District Court that Calender is necessarily challenging

architectural designs and plans—plans that only a licensed architect would be able to

produce.

We conclude that Calender’s design defect claim meets all three Couri factors and,

accordingly, the Affidavit of Merit statute applies. We will therefore affirm the District

Court’s dismissal of the design defect claim for plaintiff’s failure to timely provide the

required affidavit of merit.

B. Summary Judgment on Other Claims

A court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). We exercise plenary review over a district court’s grant

of summary judgment, and view the facts in the light most favorable to the non-moving

party. Nat’l Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 62 (3d Cir. 2013).

Except for claims for breach of an express warranty, all claims for harm caused by

a product under New Jersey law, regardless of the theory underlying the claim, are

governed by the New Jersey Products Liability Act (PLA). N.J. Stat. Ann. § 2A:58C-

5

1(b)(3). The PLA encompasses “virtually all possible causes of action relating to harm

caused by consumer and other products.” In re Lead Paint Litig., 924 A.2d 484, 503

(N.J. 2007). The PLA does not recognize negligence or implied breach of warranty as

separate claims for harm caused by a product. See Port Auth. of N.Y. & N.J. v. Arcadian

Corp., 189 F.3d 305, 313 (3d Cir. 1999). Rather, the PLA is the exclusive remedy for

such actions and other claims are subsumed within the statutory cause of action. See id.

Calender properly brought this action under the PLA. The District Court was

correct that Calender may not proceed with his common-law claims of negligence and

implied breach of warranty because those claims are subsumed by the PLA. We will

therefore affirm the grant of summary judgment for NVR on those claims.

The PLA provides that a seller or manufacturer may be liable if a product does not

contain adequate warnings or instructions. N.J. Stat. Ann. § 2A:58C-2. However, no

duty to warn exists where the danger presented by a product is “open and obvious.”

McWilliams v. Yamaha Motor Corp., U.S.A., 987 F.2d 200, 202–03 (3d Cir. 1993);

Mathews v. Univ. Loft Co., 903 A.2d 1120, 1124–25 (N.J. Super. Ct. App. Div. 2006);

see also N.J. Stat. Ann. § 2A:58C-3(a)(2) (stating that seller or manufacturer is not liable

if the unsafe aspect of the product is an “inherent characteristic of the product . . . that

would be recognized by the ordinary person”).

We agree with the District Court’s conclusion that the danger that one might fall

while attempting to enter or exit the attic through the open access panel in the ceiling is

open and obvious to an ordinary person. Cf. Mathews, 903 A.2d at 1124 (danger of

falling from six-foot-high loft bed was open and obvious). We will affirm the District

6

Court’s grant of summary judgment in favor of NVR on this claim because there was no

duty to warn.

Finally, the District Court was correct that Diane Calender’s loss of consortium

claim was derivative of James Calender’s personal injury claims and is therefore not

viable without those claims. We will therefore affirm the District Court’s grant of

summary judgment on the loss of consortium claim.

III. Conclusion

For the foregoing reasons, we will affirm the orders of the District Court.

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY

:

JAMES S. CALENDER and DIANE :CALENDER, :

: Civil Action No. Plaintiffs, : 10-cv-4277 (NLH) (KMW)

:v. : OPINION

:NVR, INC., t/a RYAN HOMES, et :al., :

:Defendants. :

: :

APPEARANCES

Gary F. Piserchia, EsquireParker McCay P.A.Three Greentree Centre7001 Lincoln Drive WestP.O. Box 974Marlton, N.J. 08053Attorney for Plaintiffs James S. Calender and Diane Calender

Brian Michael Robinson, EsquireandJoseph Kernen, EsquireDLA Piper L.L.P.One Liberty Place1650 Market StreetSuite 4900Philadelphia, PA 19103

andDavid A. Haworth, EsquireBallard Spahr L.L.P.210 Lake Drive EastSuite 200Cherry Hill, N.J. 08002Attorneys for Defendant NVR, Incorporated, t/a Ryan Homes

HILLMAN, District Judge

Plaintiffs, James S. Calendar and Diane Calender (hereafter,

Case 1:10-cv-04277-NLH-KMW Document 42 Filed 09/30/11 Page 1 of 22 PageID: 395

“Plaintiff”), brought this action against Defendant, NVR,1

Incorporated (or, “Defendant” or “NVR”), trading as Ryan Homes,

after James sustained injuries in a home he had recently

purchased. The home was designed, manufactured, constructed, and

sold by NVR. Plaintiff claims that he fell while exiting the

attic through its access panel/opening. Plaintiff alleges that

the attic’s access panel/opening was unreasonably dangerous and

defective, and states causes of action sounding in negligence

(Count One), product liability and/or strict liability (Count

Two), breach of contract (Count Three), breach of warranties

(Count Four), and loss of consortium (Count Five). Presently

before the Court is NVR’s motion to dismiss Plaintiff’s claims

for failure to file an affidavit of merit insofar as those claims

rely on a theory of design defect.

For the reasons expressed below, NVR’s motion to dismiss

Plaintiff’s design defect claims under the New Jersey Affidavit

of Merit Statute is granted.

I. JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1332.

James and Diane Calender are citizens of the State of New Jersey.

Though both James and Diane Calender are named as1

plaintiffs, the relevant events and the majority of claims inthis case involve only James Calender. Thus, in the interests ofclarity and simplicity, and unless otherwise noted, the Courtwill refer to a singular “Plaintiff,” while recognizing that bothCalenders are plaintiffs in this matter.

2


NVR is incorporated and maintains its principal place of business

in the Commonwealth of Virginia. Therefore, complete diversity

exists between the parties. The amount in controversy is met

because the allegations contained in Plaintiff’s complaint

sufficiently demonstrate that damages sought are in excess of

$75,000, exclusive of interest and cost.2

II. BACKGROUND

According to Plaintiff’s complaint, NVR is “a corporation

specializing in the sale, design and construction of residential

homes and is a mass-developer and/or professional builder,

specializing in constructing full communities.” (Compl., ¶ 5).

Plaintiff entered into an agreement with NVR to purchase a newly

constructed home on March 23, 2008. NVR designed, manufactured,

built, and sold the home purchased by Plaintiff.3

Plaintiff’s complaint does not articulate a particular2

amount in controversy. But, as Defendant correctly opines andPlaintiff ostensibly agrees, “a reasonable reading of the valueof the rights being litigated” suggests that the amount incontroversy may exceed $75,000. Angus v. Shiley, Inc., 989 F.2d142, 146 (3d Cir. 1993). Plaintiff alleges that he sufferedsevere and permanent bodily injuries. There is no reason todoubt that the amount of damages associated with such injuries,including pain and suffering, medical expenses, and loss ofwages, could exceed the minimum threshold in a diversity-of-citizenship case.

In its submissions to the Court, Defendant represents3

that, in accordance with New Jersey law, the home’s architecturalplans were designed, reviewed, and approved by Lawrence T.Bassett, a New Jersey licensed architect employed by NVR. TheCourt does not rely on this fact for its analysis, but mentionsit simply to highlight the obvious, as discussed infra: anarchitect must design building plans.

3


On or around October 21, 2008, Plaintiff accessed the home’s

attic in order to change the filters on air conditioning units

and HVAC systems. While exiting the attic, Plaintiff fell

through its access panel/opening, and suffered severe and

permanent injuries.

Plaintiff commenced this action by filing a complaint

against NVR on June 30, 2010, in the Superior Court of New

Jersey, Law Division, Camden County. The complaint alleged,

inter alia, that NVR: (1) negligently designed, manufactured,

constructed, and/or sold the home; (2) is subject to product

liability because the access panel/opening was unreasonably

dangerous and defective, and/or due to the failure to adequately

warn of such conditions; (3) breached its contract to provide a

safe, suitable home; and (4) breached its express and implied

warranties. The complaint also includes a per quod claim for

loss of consortium, and a plea for punitive damages.

NVR removed the suit to this Court on August 20, 2010. On

January 21, 2011, NVR filed the motion to dismiss Plaintiff’s

complaint with respect to the design defect claims.

III. DISCUSSION

A. Standard for Motion to Dismiss

When considering a motion to dismiss a complaint for failure

to state a claim upon which relief can be granted pursuant to

Federal Rule of Civil Procedure 12(b)(6), a court must accept all

4


well-pleaded allegations in the complaint as true and view them

in the light most favorable to the plaintiff. Evancho v.

Fisher, 423 F.3d 347, 350 (3d Cir. 2005). It is well settled

that a pleading is sufficient if it contains “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2).

A district court, in weighing a motion to dismiss, asks

“‘not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.’”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting

Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly

expounded the pleading standard for ‘all civil actions[.]’”

(citation omitted)). Under the Twombly/Iqbal standard, the Third

Circuit has instructed a two-part analysis. First, a claim’s

factual and legal elements should be separated; a “district court

must accept all of the complaint’s well-pleaded facts as true,

but may disregard any legal conclusions.” Fowler v. UPMC

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Iqbal, 129

S. Ct. at 1950).

Second, a district court “must then determine whether the

facts alleged in the complaint are sufficient to show that the

plaintiff has a ‘plausible claim for relief.’” Id. at 211

(quoting Iqbal, 129 S. Ct. at 1950). “[A] complaint must do more

5


than allege the plaintiff’s entitlement to relief.” Id.; see

also Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.

2008) (“The Supreme Court’s Twombly formulation of the pleading

standard can be summed up thus: ‘stating . . . a claim requires a

complaint with enough factual matter (taken as true) to suggest’

the required element. This ‘does not impose a probability

requirement at the pleading stage,’ but instead ‘simply calls for

enough facts to raise a reasonable expectation that discovery

will reveal evidence of’ the necessary element.” (quoting

Twombly, 550 U.S. at 556)). The defendant bears the burden of

showing that no claim has been presented. Hedges v. U.S., 404

F.3d 744, 750 (3d Cir. 2005).

B. The New Jersey Affidavit of Merit Statute

Defendant argues that to the extent Plaintiff’s claims

allege or rely on design defects, those claims must be dismissed

because Plaintiff did not file an affidavit of merit. By

Defendant’s estimation, an affidavit of merit is necessary for

any design defect claims in this case because those claims

implicate professional negligence involving a licensed

professional, an architect.

Plaintiff counters that no affidavit of merit is required

here because Plaintiff need not show any deviation in an

architect’s professional standard of care, but rather must

demonstrate only that the product was defective. Plaintiff does

6


not believe that any expert testimony is necessary to carry that

burden. Also, Plaintiff submits that no licensed person, as

contemplated by the Affidavit of Merit Statute, is a defendant in

this case.

1. Applicability and Scope

The Third Circuit has concluded that the New Jersey

Affidavit of Merit Statute (“the AMS”), N.J.S.A. § 2A:53A-26 et

seq., at issue in the instant case, constitutes substantive state

law. Chamberlain v. Giampapa, 210 F.3d 154, 161 (3d Cir. 2000).

As such, the AMS “must be applied by federal courts sitting in

diversity,” as is the case here. Id. The AMS reads in4

pertinent part:

In any action for damages for personalinjuries . . . resulting from an alleged act ofmalpractice or negligence by a licensed personin his profession or occupation, the plaintiffshall, within 60 days following the date offiling of the answer to the complaint by thedefendant, provide each defendant with anaffidavit of an appropriate licensed personthat there exists a reasonable probability thatthe care, skill or knowledge exercised orexhibited in the treatment, practice or workthat is the subject of the complaint, felloutside acceptable professional or occupationalstandards or treatment practices.

N.J.S.A. § 2A:53A-27. The AMS provides guidance by defining a

“A [federal] court will consider the New Jersey4

legislature’s purpose for enacting such a statute, as well as howthe New Jersey courts have interpreted and applied the statute.” Fink v. Ritner, 318 F. Supp. 2d 225, 228 (D.N.J. 2004). As such,this Opinion will rely on New Jersey legislative and judicialtreatment of the AMS.

7


“licensed person.” N.J.S.A. § 2A:53A-26. This list includes

architects, doctors, and engineers, among other professionally

licensed occupations. Id.

The New Jersey courts have interpreted the main purpose of

the AMS as “requir[ing] plaintiffs in malpractice cases to make a

threshold showing that their claim is meritorious, in order that

meritless lawsuits readily could be identified at an early stage

of litigation.” In re Petition of Hall, 688 A.2d 81, 87 (N.J.

1997). Put differently, the thrust of the AMS is “to weed out

frivolous lawsuits early in the litigation while, at the same

time, ensuring that plaintiffs with meritorious claims will have

their day in court.” Hubbard v. Reed, 774 A.2d 495, 500 (N.J.

2001). The New Jersey courts also have understood a goal of the

AMS to be that “the resources and time of the parties will not be

wasted by the continuation of unnecessary litigation.” Knorr v.

Smeal, 836 A.2d 794, 798 (N.J. 2003). The New Jersey Supreme

Court has cautioned, though, that the AMS should not serve “‘to

create a minefield of hyper-technicalities in order to doom

innocent litigants possessing meritorious claims.’” Ferreira v.

Rancocas Orthopedic Assocs., 836 A.2d 779, 783 (N.J. 2003)

(quoting Mayfield v. Cmty. Med. Assocs., 762 A.2d 237, 244 (N.J.

App. Div. 2000)).

Failure to provide an affidavit of merit in the required

instances and within the prescribed time period will be deemed a

8


failure to state a cause of action. N.J.S.A. § 2A:53A-29. When

a complaint is dismissed under the AMS, it is done “with

prejudice,” and “[s]uch a dismissal concludes the rights of the

parties as if the suit had been prosecuted to final adjudication

adverse to the plaintiff.” Cornblatt v. Barow, 708 A.2d 401, 413

(N.J. 1998) (citation and internal quotation marks omitted).

2. Substantive Analysis of New Jersey Affidavit ofMerit Statute

On its face, the statutory language does not support the

contention that the AMS is applicable to claims other than those

sounding in malpractice or negligence. See N.J.S.A. § 2A:53A-27

(“In any action for damages . . . resulting from an alleged act

of malpractice or negligence . . . ”). However, the New Jersey

Supreme Court has repeatedly asserted that, when deciding whether

an affidavit of merit is required, the courts should focus on the

nature of the legal inquiry rather than on the label placed on

the action. See, e.g., Couri v. Gardner, 801 A.2d 1134, 1141

(N.J. 2002). “[R]ather than focusing on whether the claim is

denominated as tort or contract, . . . courts should determine if

the claim's underlying factual allegations require proof of a

deviation from the professional standard of care applicable to

that specific profession.” Id. “If such proof is required, an

affidavit of merit is required for that claim, unless some

exception applies.” Id.

In order to assist courts in determining whether an

9


affidavit of merit is required, the Couri Court articulated a

three-element test. Courts should ask:

(1) whether the action is for “damages forpersonal injuries, wrongful death or propertydamage” (nature of injury); (2) whether theaction is for “malpractice or negligence”(cause of action); and (3) whether the “care,skill or knowledge exercised or exhibited inthe treatment, practice or work that is thesubject of the complaint [ ] fell outsideacceptable professional or occupationalstandards or treatment practices” (standard ofcare).

Id. at 1137 (quoting N.J.S.A. § 2A:53A-27). If all three

elements are satisfied, then the claim falls within the purview

of the AMS, and the affidavit is required.

C. Application of the AMS to Plaintiff’s Claims

As all three of the Couri elements are satisfied with regard

to Plaintiff’s design defect claims, the AMS applies and an

affidavit of merit is required.

1. Defendant is a “licensed person” within themeaning of the AMS, satisfying the first Courielement.

Plaintiff argues that, having named the construction company

in his complaint rather than the individual architect employed by

the company, the AMS does not apply because the company is not a

“licensed person.” The AMS, however, must be interpreted more

broadly than Plaintiff’s restricted reading. The substance of

Plaintiff’s design defect theory implicates, directly or

indirectly, Defendant’s architectural expertise and, in turn, its

10


architects and their judgment. To allow Plaintiff “to circumvent

the affidavit requirement by naming only” an entity –- in this

matter, NVR –- as a defendant in lieu of the architect

responsible for designing the access panel/opening, would lead to

an “‘entirely anomalous’” result, consequently bypassing the

affidavit requirement due to an overly technical reading of the

statute. Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey,

Branzburg & Ellers, L.L.P., 3 A.3d 518, 532 (N.J. App. Div.

2010). The AMS focuses “on the resulting harm, not on the

business forms of the named defendants.” Id. at 531. “A statute

should not be read in a crabbed fashion that leads to anomalous

results.” Id. at 532-33. Allowing this sort of exception would

encourage plaintiffs to file tort actions without regard for the

important statutory tort reform requirements imposed by the New

Jersey Legislature. And, after all, an individual employee’s

negligence within the scope of his employment may be imputed to

the employer under the doctrine of respondeat superior. See

Martin v. Perinni Corp., 37 F. Supp. 2d 362, 366 (D.N.J. 1999).

Moreover, a business composed of licensed individuals may

itself be considered a “licensed person” within the meaning of

the AMS. See, e.g., Shamrock Lacrosse, 3 A.3d at 532 (ruling

that it would be “anomalous” to circumvent the AMS requirement by

simply naming a law firm as defendant rather than the individual

lawyer whose alleged malpractice is implicated, therefore

11


considering a law firm a “licensed person” under the AMS);

Bonnieview v. Homeowners Ass’n, LLC v. Woodmont Builders, LLC,

2005 WL 2469665 (D.N.J. 2005) (holding that a company composed of

licensed environmental engineers is considered a “licensed

person” for purposes of affidavit of merit requirement); Martin,

37 F. Supp. 2d at 366 (holding that “a business organization

whose leadership is composed of ‘licensed persons’ within the

meaning of N.J.S.A. 2A:53A-26 is also considered a ‘licensed

person’ for purposes” of the AMS). Here, the conduct of a

licensed professional -- the architect who designed the attic

access panel/opening -- is clearly at issue. In fact, Plaintiff

names “John Does #1-10" in his complaint, and explicitly states

that they “are pled to temporarily suffice for the presently

undetermined identities of such persons, contractors, sub-

contractors, designers, architects, [etc.] . . . who participated

in the design, manufacture, construction, planning, [etc.] . . .

of the house.” (Compl., ¶ 3) (emphasis added). Plaintiff cannot

avoid the vital involvement of the “licensed person” at the heart

of his design defect claims in order to excuse the absence of an

affidavit of merit.

For all the foregoing reasons, NVR is considered a “licensed

person” within the scope of the AMS.

2. Plaintiff is seeking damages for personalinjuries, satisfying the second Couri element.

As indicated by the plain language of the statute, N.J.S.A.

12


§ 2A:53A-27 (“In any action for damages for personal injuries . .

. ”), and reinforced via the second Couri element, the action

must be one seeking damages for personal injuries in order for

the AMS to apply. In the present case, Plaintiff clearly seeks

damages for personal injuries. As such, the second Couri element

is satisfied.

3. Because proving a design defect claim requiresexpert testimony regarding a professional standard

of care and conduct, the third Couri element issatisfied.

The third Couri element makes the Court ask “whether the

care, skill or knowledge exercised or exhibited in the treatment,

practice or work that is the subject of the complaint fell

outside acceptable professional or occupational standards or

treatment practices.” Couri, 801 A.2d at 1137 (citation,

internal quotation marks, and brackets omitted). Following the

mandates of Couri, in order to assess this it is crucial to

examine the nature of the claim at issue -- the design defect.

In essence, one theory of Plaintiff’s claims is that the

attic access panel/opening was designed or planned defectively.

In New Jersey, only registered architects or licensed engineers

are permitted to design a home’s plans and specifications. In5

Under the New Jersey Building Code, N.J.A.C. § 5:23-2.21,5

(b) Professional architecture or engineeringservices:

1. Design: All new, renovation, alteration,

13


claiming that NVR’s building plans were designed defectively,

Plaintiff presupposes that the “care, skill or knowledge

exercised or exhibited . . . in the . . . work” of the licensed

architect “fell outside acceptable professional or occupational

standards.” Id. In essence, the design defect aspect of

Plaintiff’s claim is one of professional malpractice or

negligence in the field of architecture. Clearly, such claims

were meant to be protected by the AMS as demonstrated by not only

the plain language of the AMS but also the case law interpreting

it.

In order to prove the existence of a duty and that NVR –-

and, more specifically, its architect -- breached its

professional standard of care in designing the attic access

panel/opening, Plaintiff would have to rely on the expert

reconstruction, expansion, addition ormodification work involving the practice ofprofessional architecture or engineering, asdefined by the statutory requirements of theprofessional registration and licensing lawsof this State, shall be prepared by registeredarchitects or licensed engineers. All plans,computations and specifications required for aconstruction permit application must beprepared by or under the direct supervision ofa registered architect or licensed engineerand bear his or her signature and seal inaccordance with the State’s statutes andregulations governing the professionalregistration and licensing of architects andengineers.

N.J.A.C. § 5:23-2.21(b)(1).

14


testimony of another licensed architect, a registered engineer,

or an expert of comparable skill or knowledge. Assessing the

existence or alleged breach of a duty of care regarding an

architectural design defect clearly “concern[s] a subject matter

that is beyond the ken of the average juror.” Hisenaj v.

Kuehner, 942 A.2d 769, 774 (N.J. 2008). It is true that the

“doctrine of common knowledge permits exception to the general

rule,” Estate of Chin v. St. Barnabas Med. Ctr., 734 A.2d 778,

785 (N.J. 1999), allowing a jury, through common knowledge and

experience, “to conclude without expert testimony that a standard

of care applied and was breached,” Lucia v. Monmouth Med. Ctr.,

775 A.2d 97, 103 (N.J. App. Div. 2001). However, the common

knowledge doctrine is only applicable “where the carelessness of

the defendant is readily apparent to anyone of average

intelligence and ordinary experience.” Rosenberg v. Cahill, 492

A.2d 371, 375 (N.J. 1985). The architectural design defects in

this case are of a complex nature, involving instrumentalities

the details and nuances of which are not readily apparent, and

thus cannot be said to fall within this exception. See Rocco v.

N.J. Transit Rail Operations, Inc., 749 A.2d 868, 879 (N.J. App.

Div. 2000) (noting that when a case “involves a complex

instrumentality, expert testimony is needed in order to help the

fact-finder understand ‘the mechanical intricacies of the

instrumentality’ and help to exclude other possible causes of the

15


accident” (quoting Jimenez v. GNOC Corp., 670 A.2d 24, 30 (N.J.

App. Div. 1996))).6

This conclusion is further borne out by an examination of

the proof necessary for a negligence-based products liability

claim and a strict liability claim under New Jersey law. The7

A brief survey of product liability cases leads to the6

conclusion that, for purposes of a design defect claim, an atticaccess panel/opening constitutes a complex instrumentality inneed of expert testimony. See, e.g., Scanlon v. General MotorsCorp., Chevrolet Motor Div., 326 A.2d 673, 677 (N.J. 1974)(finding that an automobile is a complex instrumentalityrequiring expert testimony); Wojcik v. Borough of Manville, 2010WL 322893 (N.J. App. Div. 2010) (motorcycle helmet as complexinstrumentality); Tluczek v. Prestige BMW of Ramsey, 2009 WL2601625 (N.J. App. Div. 2009) (steering column); Huszar v. GreateBay Hotel & Casino, Inc., 868 A.2d 364 (N.J. App. Div. 2005)(elevator door); Lauder v. Teaneck Volunteer Ambulance Corps, 845A.2d 1271 (N.J. App. Div. 2004) (hospital gurney); Gore v. OtisElevator Co., 762 A.2d 292 (N.J. App. Div. 2000) (elevator);Rocco, 749 A.2d 868 (lock/unlock mechanism on a train door);;Hunt v. Kmart, 2006 WL 799189 (N.J. App. Div. 2006) (lawn chair);but see, e.g., Henning v. Casa DiBertacci, Inc., 2007 WL 1461170(N.J. App. Div. 2007) (finding that a cardboard box is not acomplex instrumentality requiring expert testimony, fallinginstead within the common knowledge exception); Mathews v.University Loft Co., 903 A.2d 1120 (N.J. App. Div. 2006) (findingthat the danger of falling off a bunk bed is open and obvious,not requiring expert testimony); Warrington v. Paint CreekSupply, Inc., 2008 WL 51459 (N.J. App. Div. 2008) (finding that alatch is not a complex instrumentality).

The New Jersey Products Liability Act, codified at7

N.J.S.A. § 2A:58C–1 et seq. provides in pertinent part:

A manufacturer or seller of a productshall be liable in a product liability actiononly if the claimant proves by a preponderanceof the evidence that the product causing theharm was not reasonably fit, suitable or safefor its intended purpose because it: a.deviated from the design specifications,formulae, or performance standards of the

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elements of proof under a strict liability theory are that “(1)

the product design was defective; (2) the defect existed when the

product was distributed by and under the control of defendant;

and (3) the defect caused injury to a reasonably foreseeable

user.” Michalko v. Cooke Color & Chem. Corp., 451 A.2d 179, 183

(N.J. 1982). In order to prove the first prong -- that the

product design was defective -- it is necessary to employ a risk-

utility analysis. Cepeda v. Cumberland Engineering Co., Inc.,

386 A.2d 816, 826 (N.J. 1978), rev’d. on other grounds, Suter v.

San Angelo Foundry & Mach. Co., 406 A.2d 140 (N.J. 1979).

Factors to be considered in the risk-utility analysis include:

(1) The usefulness and desirability of theproduct, its utility to the user and to thepublic as a whole.

(2) The safety aspects of the product, thelikelihood that it will cause injury, and theprobable seriousness of the injury.

manufacturer or from otherwise identical unitsmanufactured to the same manufacturingspecifications or formulae, or b. failed tocontain adequate warnings or instructions, orc. was designed in a defective manner.

N.J.S.A. § 2A:58C-2. Plaintiff seems to suggest that, becausethis claim was brought pursuant to and falls under the ProductsLiability Act, it is somehow precluded from the strictures of theAMS. However, the only case that Plaintiff cites in support ofthis contention, Darwin v. Gooberman, 772 A.2d 399 (N.J. App.Div. 2001), was specifically overturned by the New Jersey SupremeCourt on the basis of that contention. See Couri, 801 A.2d at1141 (holding that it is not the label attached to the claim, butthe substance of that claim which should inform the applicationof the AMS).

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(3) The availability of a substitute productwhich would meet the same need and not be asunsafe.

(4) The manufacturer's ability to eliminate theunsafe character of the product withoutimpairing its usefulness or making it tooexpensive to maintain its utility.

(5) The user's ability to avoid danger by theexercise of care in the use of the product.

(6) The user's anticipated awareness of thedangers inherent in the product and theiravoidability, because of general publicknowledge of the obvious condition of theproduct, or of the existence of suitablewarnings or instructions.

(7) The feasibility, on the part of themanufacturer, of spreading the loss by settingthe price of the product or carrying liabilityinsurance.

Id. at 826-27 (citing John Wade, “On The Nature of Strict Tort

Liability For Products,” 44 Miss. L.J. 825, 837-838 (1973)).

Under a negligence-based product liability theory, the plaintiff

not only examines the care or skill of the designer, but also

“‘must prove under a risk-utility analysis the existence of an

alternate design that is both practical and feasible,’ and

‘safer’ than that used by the manufacturer.” Diluzio-Gulino v.

Daimler Chrysler Corp., 897 A.2d 438, 441 (N.J. App. Div. 2006)

(quoting Lewis v. Am. Cyanamid Co., 715 A.2d 967, 980 (N.J.

1998)).

Proceeding under either rubric, it is clear that in the

instant case, Plaintiff is necessarily challenging the

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architectural designs and plans -- which only the licensed

architect was able to craft. In order to do so, he would need

the expert testimony of another licensed architect or a

comparable expert. For example, under the strict liability

design defect rubric, Plaintiff would first need to prove that

the product design was defective. See Michalko, 451 A.2d at 183.

This necessarily entails an analysis of the design plans, an

assessment that could only be performed by an expert capable of

opining on the professional standard of care. Similarly, under

either design defect theory, it would be necessary to propose a

safer, alternative design. This, too, would necessarily entail

expert testimony. The testimony would have to compare the safer

alternate design with the allegedly unsafe earlier design,

thereby demanding an examination of the original architect’s work

product and, as such, the care or skill with which he designed

the access panel/opening. Without such referential testimony, it

would be difficult to satisfy the “safer alternate design”

requirement. And, of course, the negligence-based theory of

product liability, by its definition and nature, must delve into

the professional standard of care and determine whether any

deviation from that standard has occurred.

It therefore is clear that proof of a design defect in this

case would require expert testimony of a licensed architect,

engineer, or other expert that addresses the “care, skill or

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knowledge exercised or exhibited” in the design. Couri, 801 A.2d

at 1137 (citation and internal quotation marks omitted). In

order to succeed, the expert testimony would have to assert that

the prior architectural design work “fell outside acceptable

professional or occupational standards or treatment practices.”

Id. (citation and internal quotation marks omitted). For all the

foregoing reasons, the third Couri element is satisfied.

4. The AMS applies to Plaintiff’s design defecttheory, and as such, an affidavit of merit wasrequired.

All three Couri elements are satisfied. First, the

defendant is considered a “licensed person.” Second, the claim

seeks damages for personal injury. Third, the nature of the

claim necessarily involves a contention about the professional

standard of care for a protected, licensed class -- architect.

As all three elements are satisfied, the AMS applies to the

Plaintiff’s design defect claim. An affidavit of merit was

therefore required to proceed under that theory of liability. It

is undisputed, however, that Plaintiff did not file an affidavit

of merit.

As stated above, failure to file an affidavit of merit in

the required instances will result in dismissal with prejudice of

the claim. Cornblatt, 708 A.2d at 413. Defendant notes, and

Plaintiff seems to disregard, that Defendant’s motion to dismiss

is only to the extent that the counts are based on design defect

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allegations. In fact, Defendant concedes that the AMS does not

apply to certain of Plaintiff’s other causes of action,

repeatedly acknowledging, expressly and impliedly, the limited

scope of the motion to dismiss and the application of the AMS to

this case.

Therefore, to the extent that Plaintiff’s theories of

liability are based on design defect, they are dismissed. The

practical effect of this ruling is that Plaintiff is precluded

from trying to establish the existence of, or rely on a theory

of, design defect. Absent an affidavit of merit, Plaintiff

cannot proceed in any way on such a claim.

However, Plaintiff’s claims that are separate and apart from

design defect -- manufacturing defect, failure to warn, breach of

express warranty, and breach of contract -- are still viable at8

To the extent that the underlying claim is based on a8

defective product (rather than negligence in construction orinstallation), and hence governed by the Products Liability Act,breach of implied warranty and negligence are not viable claims. “[T]he PLA ‘no longer recognizes negligence or breach of warranty(with the exception of an express warranty) as a viable separateclaim for ‘harm[,]’ [including personal injury,] caused by adefective product’ or an inadequate warning.” Koruba v. Am.Honda Motor Co., 935 A.2d 787, 795 (N.J. App. Div. 2007) (quotingTirrell v. Navistar Int’l, Inc., 591 A.2d 643, 647 (N.J. App.Div. 1991)). “Rather, the exclusive method to prosecute such aclaim is . . . by proving that the product was not reasonablyfit, suitable or safe for its intended purpose because it eithercontained a manufacturing defect, failed to contain adequatewarnings or instructions, or was designed in a defective manner.” Id. It is therefore not possible to assert breach of impliedwarranty or negligence as separate claims to the extent that theyare based on the product itself.

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this time. The Court does not read Defendant’s motion as

challenging any of those other claims. Moreover, it may be

possible to establish those claims absent any allegation of

design defect. See, e.g., Myrlak v. Port Auth. of N.Y. & N.J.,

723 A.2d 45, 52 (N.J. 1999) (allowing a plaintiff to prove a

manufacturing defect using direct evidence, including expert

testimony, or circumstantial evidence). Therefore, Defendant’s

motion is granted, and Plaintiff is precluded from pursing his

causes of action under a theory of design defect.

IV. CONCLUSION

For all the foregoing reasons, Plaintiff’s design defect

claims fall under the purview of the New Jersey Affidavit of

Merit Statute, N.J.S.A. § 2A:53A-26 et seq. Due to Plaintiff’s

failure to file an affidavit of merit to support this portion of

his complaint, Defendant’s motion to dismiss is granted.

Plaintiff may proceed with his action only to the extent that it

in no way relies on or attempts to establish the existence of a

design defect.

Date: September 30, 2011 /s/ NOEL L. HILLMAN At Camden, New Jersey Hon. Noel L. Hillman, U.S.D.J.

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NOT PRECDENTIAL - Ballard Spahr/media/Files/Alerts/2013-12-18-Calen… · 18/12/2013 · Whether Calender’s claim is characterized as one for professional negligence or malpractice,

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